Labor History on Labor Day: Trump Tries to Kill OT

On the 80th anniversary of the Fair Labor Standards Act supported by President Roosevelt, Trump is trying to tear those standards down. | AP

Trump’s DOL has spent 2017-2018 attacking FLSA provisions.

By Mark Gruenberg / 08.31.2018

It says something about the anti-worker bias of the GOP Trump administration that its Labor Department has spent the 80th anniversary of the Fair Labor Standards Act – the nation’s basic overtime pay and minimum wage law – trying to weaken it.

So much so that 10 state attorneys general went to court to try to stop his latest move, one that would, in the words of their announcement give violators “a get-out-of-jail-free card.”

The FLSA, passed in 1938, was part of President Franklin Delano Roosevelt’s “Second New Deal,” along with other pro-consumer and pro-worker legislation. Like his other New Deal measures, right-wingers were in strong opposition.

Racist Southern Democrats were a key part of his governing coalition, and so the president had to compromise to get the legislation through. It exempted farm workers and home health aides, many of them Southern black men and women, respectively.

Surprisingly, legendary Mine Workers President John L. Lewis, labor’s most-influential voice, said the minimum wage would become a ceiling, not a floor, on workers’ wages. He opposed it, saying collective bargaining would do better for workers. But three years after FLSA became law, labor came around – even if Lewis didn’t.

“More has been accomplished by labor through social legislation than through strikes” historians Samuel Eliot Morison and Henry Steele Commager contended in their classic Growth of the American Republic.

“This, in a general way, includes establishment of the 8-hour day in most industries, limitation of the hours and regulation of the conditions of women’s labor, abolition of child labor…minimum wage regulation, unemployment insurance and old-age pensions,” among other reforms. All were in the FLSA, except for jobless benefits and old-age pensions – and both of those were in the 1935 Social Security Act.

Trump’s DOL has spent 2017-2018 attacking FLSA provisions:

Eligibility for overtime pay has not changed in more than a decade. Unless covered by union contracts, workers earning more than $23,660 per year could be ineligible for overtime pay after working 40 hours a week. When the GOP Bush government set that standard in 2005, it also exempted workers from overtime, regardless of their pay level, if they had only a few “supervisory” duties. Even some newspaper editorial assistants and carriers were out.

Democratic President Barack Obama’s Labor Department set out to do something about that, raising the eligibility ceiling to all workers earning less than $47,476 yearly, tightening the “supervisor” exemption and indexing future increases to inflation, not DOL or administration whim. Economic Policy Institute Policy Director Heidi Shierholz calculated Obama’s new overtime pay ceiling alone would have benefited 12.5 million low-wage workers.

The Chamber of Commerce, the National Association of Manufacturers and their allies took Obama’s DOL to court, before a GOP-named federal judge in rural Texas, and got a nationwide court order against expanding worker eligibility for overtime pay.

Under past practice, the Justice Department is supposed to defend a federal law in federal court. Obama’s DOJ took the case to the federal appeals court in New Orleans, but administrations changed before the judges could rule – and Trump’s Justice Department reversed course.

What Acosta’s DOL did do was to try, at the behest of the right-wing viciously anti-worker National Restaurant Association, to let bosses keep tipped workers’ tips, thus violating the minimum wage section of the FLSA.

The tipped minimum wage is $2.13 an hour and hasn’t risen in more than a quarter of a century. Theoretically, bosses are supposed to make up the difference between the tipped minimum and the federal minimum ($7.25 hourly). In practice, many don’t. Estimates of wage theft from tipped workers – most of them minorities, women, or both who can least afford to lose pay – start at $5.8 billion yearly and go up.

DOL produced an uproar and its plan drowned in a flood tide of 346,000 complaints, many of them marshalled by the pro-worker pro-union Restaurant Opportunities Center. ROC also mustered marches in many cities and staged a showy protest at DOL itself, complete with an huge banner hung from agency headquarters, declaring “Trump: Don’t steal my tips!”

The brouhaha worked. House Democrats jumped on Acosta during a money bill hearing, then wrote in a provision banning DOL from letting bosses grab workers’ tips. Acosta reluctantly agreed to drop the idea and work instead with lawmakers on a fix, especially after investigative reporters found a DOL impartial analysis opposing the wage-theft scheme was buried by the Trump White House.

The department’s regulatory agenda includes “a Wage and Hour Division proposal that would update the rules that limit workers under age 18 from working in occupations that are particularly hazardous or detrimental to the health or well-being of children.”

“A summary of a draft regulation obtained by Bloomberg Law showed DOL will propose relaxing the current rules that prohibit apprentices and student learners under the age of 18 from receiving extended, supervised training in certain dangerous jobs,” like driving forklifts and operating hazardous machines, she said.

“In other words, instead of working to safeguard the health and well-being of all workers — especially children — DOL is instead planning to propose to make it easier for 16- and 17-year-olds to work in hazardous occupations.”

Finally, the “get-out-of-jail free” card led the attorneys general of New York, Illinois, Maryland, seven other states, and D.C. to go to federal court to stop it on August 6.

The FLSA includes a provision, the AGs explained, saying nothing in the law shall prevent states (and D.C.) from passing their own laws with tougher standards than the national rules – and that in those states, DOL must enforce the tougher laws. But Trump’s Labor Department, their suit says, instituted the so-called “Paid Program,” that would let the states get away with not doing so.

DOL unveiled the program earlier this year, and New York Attorney General Barbara Underwood and her colleagues filed a Freedom of Information Act request for the paperwork behind it – to see why DOL dreamed it up and how it plans to implement it. DOL hasn’t responded, so the AGs went to federal district court in Manhattan to sue.

“The PAID Program would erode workers’ rights by allowing employers to evade prosecution and penalties for wage theft under state labor laws that are more protective than federal law. The request additionally sought agency records concerning the development, implementation, consideration, and evaluation of the PAID Program, including communications with employers. To date, the Labor Department has failed to provide any agency records in response to the FOIA request,” Underwood said.